1 / 14

WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Discovery Resolution without Trial Trial & Post-trial Appeal. DISCOVERY Scope & Limits. 26(b)(1) General Not privileged Relevant to Claim/defense Subject matter 26(b)(2) Court discretion to limit Individual case

osias
Download Presentation

WHERE WE ARE & WHAT WE’RE DOING

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Discovery • Resolution without Trial • Trial & Post-trial • Appeal

  2. DISCOVERYScope & Limits • 26(b)(1) General • Not privileged • Relevant to • Claim/defense • Subject matter • 26(b)(2) Court discretion to limit • Individual case • Local rule - #requests to admit • 26(b)(3) & (4) Exceptions • Trial Preparation Materials • Experts

  3. F.R.Civ. P.Advisory Committee Notes • “Legislative history” • What drafters thought they were doing

  4. WORK PRODUCTHickman v. Taylor, p. 525 • Reviewability • How did Hickman reach appellate court? • What type of orders appealable? • What was order appealed from here? • Why appealable?

  5. WORK PRODUCTHickman v. Taylor • Discovery requests • Device • Information sought • Relevant? • Privileged?

  6. WORK PRODUCTHickman v. Taylor • Policy concerns

  7. WORK PRODUCTHickman v. Taylor • Interrogatories • List names/addresses of any W’s to sinking ship • Facts • Discoverable • List any such W’s you have interviewed • Strategy/mental impressions? • Not discoverable? • Describe statement of each W • Lawyer’s mental impressions • Not discoverable

  8. WORK PRODUCTHickman v. Taylor • Hypothetical • Fortenbaugh interviewed W • W says “I saw several loose hull plates on ship just before it sank” • Frame a discovery request • Existence of W • Hull plates loose

  9. DISCOVERYFR 26(b)(3) Trial Prep Materials • Party may obtain • discovery of • documents • and • tangible things • otherwise discoverable under . . . (b)(1) . . . • and • prepared in anticipation of litigation • or • for trial • by or for another party • or • by or for that other party’s representative . . .

  10. DISCOVERYFR 26(b)(3) Trial Prep Materials • Only upon a showing that • the party seeking discovery • has substantial need • of the materials • in the preparation of • the party’s case • and that • the party • is unable without undue hardship • to obtain • the substantial equivalent • of the materials • by other means

  11. DISCOVERYFR 26(b)(3) Trial Prep Materials • In ordering discovery • of such materials • when the required showing • has been made • the court • shall guard against • disclosure of • the mental impressions • conclusions • opinions • or • legal theories • of an attorney • or • other representative • concerning the litigation

  12. DISCOVERYFR 26(b)(3) Trial Prep Materials • Advisory Committee • Proposal to delete FR 26(b)(3) • Abolish protection for “work product”

  13. TAKEAWAYS • Black Letter Law • FR 26(b) (3) • Exception to broad scope of discovery • Largely codifies Hickman v. Taylor • Protects • Trial preparation materials • Not facts • “Conditional” privilege • Overcome by showing of need

  14. TAKEAWAYS • Big theme • Tension between • Duty to court • Adversarial role

More Related